Archive for the ‘Law’ Category

I am a snoot. I didn’t mean to be a snoot when I started out and I’m not sure how it happened or even when. But I am one, one of “The Few, the Proud, the More or Less Constantly Appalled at Everyone Else.”

David Foster Wallace

No need to wander off in search of a dictionary, it’s a new usage and comes from the writer David Foster Wallace who, in the fifth footnote to an article he wrote about grammar, described SNOOTS: “A SNOOT can be defined as somebody who knows what dysphemism means and doesn’t mind letting you know it.”

And to prove I am a snoot I will now let you know that dysphemism means using an intentionally harsh word instead of a polite one. Think of it as the opposite of a euphemism. A common euphemism for dying is “passed away.” Dysphemisms for dying include, “assumed room temperature”,“kicked the bucket” or ”took a dirt nap”. A truly serious dysphemism, rising to the level of an actual insult would be calling a snoot a pedant.

In short, a snoot is somebody who cares about the English language, uses it correctly, and knows what a sublime tool it is.

Snoots know, according to Wallace, “when and how to hyphenate phrasal adjectives and to keep participles from dangling, and we know that we know, and we know how very few other Americans know this stuff or even care, and we judge them accordingly.” And we who revere the language are more than “appalled”, we are apoplectic when we hear a putative political leader say about Paul Revere,

“He who warned the British that they weren’t gonna be takin’ away our arms by ringing those bells, and makin’ sure as he’s riding his horse through town to send those warning shots and bells that we were going to be sure and we were going to be free, and we were going to be armed.”

One of the Homes of the English Language (Oxford, 1890)

Nor are we pleased when we read in the United States Constitution – the Constitution! – :

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws. [emphasis added]

And speaking of the Constitution, that reminds me that I find myself in the company of Justice Scalia, also a self-described snoot. He has a good working definition too:

But there are people who care a lot about words, about precise use of words, and there are people who don’t. And snoots are those who are nitpickers for the mot juste, for using a word precisely the way it should be used.

I’m troubled by being in the company of Justice Scalia just like I’m troubled when I come upon a federal judge fly-fishing or engaging in some other harmless activity: It’s jarring. But, there you have it. And while I am compelled, by virtue of his exalted station in American life, to care about what Justice Scalia thinks, it is a good bet he cares not a farthing for anything I think. But facts are facts and we’re both snoots. And how can anybody disagree with this Scalian sentiment, “To write well is to communicate well. To write poorly is to communicate poorly.”

Stradivarius in Berlin -Photo courtesy of Hay Kranen

Because he coined the term, I leave the last word to Wallace who opined that hearing adults misuse the language is akin to watching someone pound nails with a Stradivarius.

Federal judges have a pretty good work life. They work in great majestic rooms and when they enter and leave those rooms, everybody stands up. They can only be fired by the United States Senate and, unless they get caught taking a bribe, that hardly ever happens. Their pay can never be cut. If they decide to retire, they can take “senior status” and make almost as much money as if they were still working every day. They get the best health care possible, United States Marshals for protection, law clerks for the drudge work of judging, and big offices, all paid for by somebody else.

But if you go to watch them at work, you’ll often be left with the distinct impression that these people are not happy. So, you may ask, why not?

Well, until you reach the august realm of the U.S. Supreme Court, federal judges are basically overworked. They handle large caseloads in an increasingly bureaucratized system. They must deal with lawyers, too many of whom are less than ideally competent. And, like bankers who spend their days saying “no”, federal judges spend a lot of time saying “no” to litigants in their courtrooms and putting other people in jail. Often, the judges might have preferred saying “yes” to litigants but couldn’t because of the controlling law. Worse, judges know that they will always make someone unhappy every time they make a ruling. It’s the nature of the adversary system. All that wears on them. They’re only human after all. Most probably suspect that Tacitus was right:

Judges are best in the beginning; they deteriorate as time passes.

Walton's Cottage in 1888

I’m not completely objective you understand. I spend my career trying to change the status quo and the judiciary is the first line of defense for the status quo. By design and by nature the judiciary is the most conservative of our governing institutions and – especially since Ronald Reagan – the federal judiciary has been populated mainly by judges personally conservative both by design and by nature. Often they don’t like attempts to change the status quo. Still, I find many violate the great fisherman Izaak Walton’s injunction in his The Compleat Angler,

If thou be a severe, sour-complexioned man, then I disallow thee to be a competent judge.

I once found a federal judge on a catch and release fly-fishing stream. This stunned me. It was the first time I’d ever seen a federal judge engaging in a harmless activity. It disordered my mind and for some weeks I felt unbalanced, like I’d seen a ghost gibbering in the streets. I watched the apparition for a while, studying the thing in my mind.

I’d been a trial lawyer for a couple of decades by then and had learned that no evidence is less reliable than eyewitness testimony. Our eyes fool us all the time so I knew that they might be fooling me now. The first thing I did was get out my camera and take a picture of the thing. But, upon reflection, I realized that any apparition capable of assuming the form of a fly-fishing federal judge could easily rearrange the pixels in my camera so I couldn’t trust any photographic evidence.

I determined to go down there and confront the thing up close. I don’t claim that I wasn’t terrified as I walked down that slope to the river: I was, but I went down there anyway, expecting at any moment to be swallowed by a wormhole and instantly transported to some place on the far side of the universe.

But nothing happened. I walked right up to that federal judge apparition and it spoke to me! Called me by my name. Shook my hand. Asked how the fishing had been for me. Wanted to know what fly I was using.

Today is Bob Dylan’s birthday. He is seventy (70) today. Millions of people will no doubt take note. Hundreds of bloggers too will hop on the bandwagon. Much real and electronic ink will be spilled today and why should this blog be any different?

I’ll just tell you that Dylan’s lyrics are cited in legal opinions and scholarly legal articles far more than anyone else. Almost three times more than his closest rival, the Beatles. By the end of 2007 his lyrics had been cited 186 times.

Former Alabama governor Don Siegelman was convicted of various offenses committed during his governorship of Alabama. His case achieved notoriety beyond Alabama because of allegations that the prosecution of the governor was motivated and perhaps engineered from Karl Rove’s White House office. Siegelman’s case has already made one trip to the United States Supreme Court which sent it back to the Circuit Court. That court recently affirmed – again – the conviction.

That court, in affirming, explained the role of judges and juries in our system with some eloquence. Here is what the judges said:

But [the case] has arrived in this court with the “sword and buckler” of a jury verdict. The yeoman’s work of our judicial system is done by a single judge and a jury. Twelve ordinary citizens of Alabama were asked to sit through long days of often tedious and obscure testimony and pour over countless documents to decide what happened, and, having done so, to apply to these facts the law as the judge has explained it to them. And they do. [sic.] Often at great personal sacrifice. Though the popular culture sometimes asserts otherwise, the virtue of our jury system is that it most often gets it right. This is the great achievement of our system of justice. The jury’s verdict commands the respect of this court, and that verdict must be sustained if there is substantial evidence to support it. Glasser v. United States, 315 U.S. 60, 80 (1942).Furthermore, to the extent that the verdict rests upon the jury’s evaluations of the credibility of individual witnesses, and the reasonable inferences to be drawn from that testimony, we owe deference to those decisions. In our system, the jury decides what the facts are, by listening to the witnesses and making judgments about whom to believe. This they have done, and, though invited to do so, we shall not substitute our judgment for theirs.

That is as good a summary of the role of juries in our judicial system as I’ve seen for a while.

For pure, raw, unadulterated emotion, nothing beats a courtroom in which a divorce or child custody trial is in progress. Lawyers and judges who specialize in such work often burn out. The ones who last over the long haul tend to be people able to use their senses-of-humor to maintain a little distance from all that emotion that erupts in their courtrooms.

One such judge presides over domestic relation matters in Ontario’s Superior Court. In a recent case a couple – Catherine and Larry – were duking it out in a particularly nasty divorce. Catherine had once attempted to drive over Larry in the family van. According to Judge Joseph Quinn, “ This is always a telltale sign that a husband and wife are drifting apart.”

Anyone who visits the western United States will eventually come across a postcard of the jackalope, a mythic cross between a jack rabbit and a Pronghorn antelope. But, as far as I know, the jackalope had never made an appearance in a legal opinion from any court anywhere. But last week, the animal was immortalized by the Seventh Circuit Court of Appeals in Chicago. Confronted with a case involving a group of former employees seeking penalties under Indiana law against stockholders of their former corporate employer, the court ruled against the employees. In disposing of the claim, Judge Easterbrook wrote:

Plaintiffs want to combine the Indiana statute, which makes employers liable for penalties when they do not pay wages on time, with the New York statute, which makes some equity investors directly liable to workers for wages and benefits. Yet neither state passed such a hybrid law, which the district judge likened to a griffin or jackalope. (A griffin is a mythical creature, but a jackalope is the main character in the short film Boundin’ and therefore must exist. Surely Pixar would not mislead millions of children.)

We left off last time after Alaskan Senator Ted Stevens was convicted of the felony offense of failing to report a $250,000 gift, on the basis of hearsay evidence. Remember the note that Stevens wrote to Bill Allen whose company performed $250,000 of work on Stevens’ home and was never paid for the work:

Dear Bill,

Thanks for all the work on the chalet. You owe me a bill – remember Torricelli, my friend. Friendship is one thing – compliance with these ethics rules entirely different. I asked Bob P to talk to you about this so don’t get P.O.’ed at him – it just has to be done right.

This time we pose the question of what was his lawyer thinking when that piece of evidence reared its head.

Here again is the transcript:

Q: Did you send Senator Stevens a bill or an invoice after you received the note from him?

A: No.

Q: Mr. Allen, do you remember having a conversation with Mr. Persons after you got the note from Senator Stevens?

A: Yes.

Q: What did Mr. Persons tell you?

A: He said oh, Bill, don’t worry about getting a bill. He said, Ted is just covering his ass.

Bill Allen testifying about something that Bob Persons told him. Textbook hearsay evidence. And look at the third question. A lawyer representing Stevens would need to be comatose or dead not to rear up and object to that question before Allen had a chance to answer it. A second-year law student would not have missed that objection. You wouldn’t have missed it.

But Brendan Sullivan, Stevens’ lawyer missed it. Sullivan, experienced and prominent Washington D.C. lawyer, sat on his hands and did not object. And the answer destroyed his first-line defense – that Stevens intended to pay for the work on his Alaskan chalet.

I don’t have an answer for this mystery nor have I seen any more of the trial transcript than you have. It may be that this piece of evidence and Sullivan’s objection to it was made outside the presence of the jury, but I doubt it.

One more thing you should know: the government did not disclose to Stevens’ defense lawyers that Allen was going to testify that Bob Persons had told him that the note was just a “CYA” effort. The government’s failure to disclose that news was the primary reason why the trial judge – with brand-new Attorney General Eric Holder in complete agreement – dismissed the entire case against Stevens on the basis of prosecutorial misconduct. The felony conviction was wiped from the record, although too late to help Stevens in his re-election campaign in which he was defeated.

But that just makes the failure to object to the question, “What did he tell you?” even worse. Sullivan was sitting there, a question clearly asking for hearsay evidence is asked, he doesn’t know in advance what the answer is and he just sits there? Most lawyers would have come out of their seats to object so fast that someone would have to scrape them off the ceiling.

But Sullivan is an eminent, successful D.C. lawyer. He may have had some plan in mind that so far exceeds my poor ability to grasp it, that I should be embarrassed for raising the question. But I doubt it; I think he just screwed up.

O.J. Simpson Mug Shot (Public Domain)

That thought leads me to the last observation I’ll make about the Stevens case. It was, obviously, a high-profile, news-worthy case. A phenomenon about such cases that I have noted over my career is a need on the part of news media to assume that any lawyer involved in such a case must be the cream of the crop. Remember O.J. Simpson’s “Dream Team?” Competent lawyers, without doubt, but incompetence of the prosecutors and, especially, the judge, explain why Simpson was acquitted of murder. The same thing is happening now with the lawyers involved in the Tuscon murder case. The lead defense lawyer apparently is a genius and the lead prosecutor is right up there with her. That might be true, maybe those two lawyers are the greatest lawyers in the history of the American bar. More likely? They are just as good as thousands of lawyers all across the land who are in court as I write this, doing their jobs competently, without the media taking the slightest notice.

And I’m betting that every one of them would have objected to the question, “What did Mr. Persons tell you?”

Last time, after describing hearsay evidence, I told you that today’s post would tell the story of how inadmissible hearsay evidence convicted a United States Senator and ended his career.

The Senator was Ted Stevens of Alaska. The six-term Republican senator was a Washington D.C. powerhouse when he was indicted in 2008 for failing to report gifts as required by federal law. Stevens accepted more than $250,000 of work on his Alaska home from a friend and did not pay for the work. Even though the friend, Bill Allen, had received millions of dollars of federal government work while Stevens was chairman of the Senate Appropriations Committee, Stevens was not accused of accepting the work as a bribe. He was charged merely with failing to report the work on his Alaskan house as a gift, a less serious crime, but a crime nonetheless.

The case turned on a single piece of evidence, a note that Senator Stevens had written his friend Bill Allen. The note read,

Dear Bill,

Thanks for all the work on the chalet. You owe me a bill – remember Torricelli, my friend. Friendship is one thing – compliance with these ethics rules entirely different. I asked Bob P to talk to you about this so don’t get P.O.’ed at him – it just has to be done right.

(Torricelli was the N.J. Senator forced from office for accepting gifts. “Bob P” was a mutual friend of Stevens and Allen whose full name is Bob Persons.)

Stevens' Alaskan Home (Photo Donated to Public Domain by "Kandorwriter")

Stevens’ lawyer – more about him later – wanted that letter in evidence because it tends to prove that Stevens did not intend to commit the crime, he just forgot that Allen never sent him a bill. (I know. It seems hard to forget that you’ve had a quarter of a million dollars of work done on your house and that you haven’t paid for it, but we’re not United States Senators.) So Stevens’ lawyer starts out wanting to get that letter into evidence. (For those of you who are thinking: “Wait a minute. Isn’t that letter itself hearsay? Kudos. But that is not the piece of evidence we’re concerned with right now. The letter was admitted into evidence by the Government, so Stevens’ lawyer was spared the necessity of arguing to the contrary.)

And now we come to the interesting part. Another piece of hearsay and one that could destroy the usefulness of the letter Stevens wrote requesting a bill for the work. The Government called Bill Allen to testify. Remember that Stevens’ letter said that Bill Persons was going to talk to Allen about the bill. Here is the testimony from Allen in response to questions asked him by the Government’s lawyer:

Q: Did you send Senator Stevens a bill or an invoice after you received the note from him?

A: No.

Q: Mr. Allen, do you remember having a conversation with Mr. Persons after you got the note from Senator Stevens?

A: Yes.

Q: What did Mr. Persons tell you?

A: He said oh, Bill, don’t worry about getting a bill. He said, Ted is just covering his ass.

Boom! Lightning strikes Senator Stevens. The letter that was to save him now looks like part of an illegal scheme.

We’ll skip, for the moment, what Stevens’ lawyer was doing during that exchange and examine the answer to see if it is hearsay. Whose statement is it? Mr. Persons. Is Mr. Persons on the witness stand? No, it’s Bill Allen. Was Persons’ statement made outside the courtroom? Yes. What does the statement say? It says that Senator Stevens doesn’t really expect to pay for the work; that he knows it’s a gift. What is the statement offered to prove? That Stevens expects no bill. Hearsay? Yes! It is an out-of-court statement offered to prove exactly what it says.

The jury convicted Senator Stevens and he lost his re-election campaign shortly after.

_______________________

Stevens’ conviction was not the end of the story. We’ll return to that next time and we’ll wonder why Stevens’ lawyer didn’t erupt from his chair objecting to the hearsay. If you can’t wait and have a New Yorker subscription you can read about the aftermath of the trial in Jeffrey Toobin’s article in the New Yorker. (Toobin tells you about the aftermath, not about Stevens’ lawyer’s inexplicable failure to object. For that discussion, you’ll have to wait for me to stop scratching my head and start typing.)

The hallmark of the English-American Common Law system of trials is cross-examination. Once called the greatest engine for the discovery of the truth ever invented, a trial without it is unimaginable in our justice system.

But you can’t cross-examine someone who is not at the trial. Think about it: A trial is a re-creation of something that happened outside the courtroom in time past. Witnesses and documents are brought to the courtroom to re-create the event that gave rise to the trial. Evidence that can’t be cross-examined has no place in that re-creation.

That is why there is a rule against “hearsay evidence.”

When you hear a lawyer say, “I object, calls for hearsay” that lawyer is using the word “hearsay” as a technical term of art. For judges and lawyers “hearsay” means any statement made outside the courtroom offered to prove what it says. That deceptively simple definition takes law students about a semester to grasp and hardly any Hollywood screen writer understands it. But that is nothing. I’ve appeared in front of trial judges who don’t fully understand it either.

Let’s start with an example. We’ll pretend that you were on your way home from work yesterday, driving your car west-bound through an intersection controlled by a traffic light. The passenger side of your car is hit in that intersection by a south-bound car. There are only three witnesses to the wreck; you, the other driver, and a pedestrian waiting to cross the street. You are positive you had a green light and the other driver says he had a green light. Obviously one of you is either mistaken or lying and you are positive it is the other driver. You see the bystander and run over and ask her what she saw and she says to you, “That guy ran a red light!”

As a result of the crash you have a cervical strain which requires you to incur medical bills and wear one of those uncomfortable neck collars for three months. And have your car repaired. The other driver and his insurance company refuse to pay you because they think you ran the red light. The only thing you can do to recover and get a measure of justice is to sue, which you reluctantly do.

A year or so later your case is finally called to trial. A jury of people who don’t know you or the other driver is selected to hear the evidence. Because you are in the courtroom and subject to cross-examination, you will be allowed to testify that you had the green light. The other driver is also in court and testifies that he had the green light and that you ran the red light.

So now the jury has one witness – you – saying you had a green light and one witness – the other driver – saying that you ran a red light. If they believe you, he’ll have to pay you damages. But if they believe him, he won’t have to pay you a nickel. How are they supposed to pick who is telling the truth, especially because both of you have something to gain by your testimony?

But there was a witness with no ax to grind and she told you that the other guy ran a red light. Her testimony will tilt the scales decisively for you.

But there’s a problem. She left the scene right after she talked to you and no one knows where to find her. She’s not in the courtroom and the only way to get her statement to you into evidence is for you to testify about what she said, but she cannot be cross-examined.

Here is how it would unfold in the courtroom:

Your Lawyer: Were there any other witnesses to the wreck?

You: Yes. There was a woman standing on the curb.”

Your Lawyer: Did you talk to her?

You: Yes, I did.

Your Lawyer: What did she say to you?

Opposing Lawyer: I object, Your Honor, calls for hearsay.

Judge: Sustained.

The result? You are not allowed to testify about what she told you and the jury must decide the case without knowing what she saw. Why? Because her statement to you, “He ran the red light!” was made outside the courtroom and is offered by you to prove exactly what it says, that he ran the red light.

Clarence Darrow at Work in the Scopes Trial

Sometimes, of course, a lawyer makes a mistake and fails to object to hearsay evidence, but no one would try to win a case hoping for a lawyer to sit on his hands and not object to a question that calls for hearsay evidence. And sometimes, a judge will make a mistake. But no trial lawyer would go to trial merely on the off-chance that a judge might miss the call.

But it does happen occasionally. We’ll be back next time to show you a piece of hearsay evidence that destroyed the life-long successful political career of a United States Senator.

I use a football analogy in order that we may pause and consider that college football had thirty-five (35) post-season bowl games this year. Once there were only five, four of which were played on New Year’s Day. Now the games last a month or more.

Thirty-five bowl games may seem like a lot, but it actually shows a lack of imagination on the part of college football. They could almost double the number if they had “Play-Off Bowls.” For instance, the “Alamo Bowl” could play the “Independence Bowl” with the winner of that game moving on to meet the winner of the “Military Bowl”/ “Armed Forces Bowl” matchup. The “Texas Bowl” could invade the “New Mexico Bowl”, then move on to meet the “Pinstripe Bowl”. The “Humanitarian Bowl” would take on the “Fight Hunger Bowl” with the winner advancing to the “Chick-Fil-A Bowl”/ “Little Caesar’s Bowl” contest. And so on, ad infinitum. College football could last until mid-July.

End pause.

The Ninth Circuit, as I said, punted the gay marriage case to the California Supreme Court and the ironies abound. The reason assigned by the Ninth Circuit for the punt was uncertainty about whether the people supporting Proposition 8 – outlawing same-sex marriage in California – have “standing” to even be in the lawsuit. “Standing” is a legal doctrine beloved of Republicans and conservative judges because it limits, sometimes drastically, who is allowed to participate in a lawsuit.

The Ninth Circuit Courthouse in 1905

The Ninth Circuit, carefully applying the newer, more restrictive rules announced by the Rehnquist and Roberts Supreme Courts, couldn’t be sure that the anti-gay marriage people in the lawsuit had “standing” to argue in favor of the Proposition outlawing gay marriage. That question, the court decided, has to be sent to the California Supreme Court because neither the governor nor the attorney general of that state are contesting the illegality of Proposition 8. The proposition is part of California law; someone from the state government ought to be defending it, but no one is. Both the governor and the attorney-general punted, leaving only the anti-gay private citizens to defend the hapless proposition.

In other words, the conservatives in this case may not be able to proceed because conservatives in Congress and on the Supreme Court have so strictly limited access to the federal courts. If that’s the case (pun intended), then there is no one who can appeal the trial court’s ruling that Proposition 8 is unconstitutional; gay marriage would be legal in California; and the conservatives on the U.S. Supreme Court would not get to decide the issue. There would be no “Gay Bowl” v. “Anti-Gay Bowl”.